CREW v. Trump (2d Cir) is one of three so-called Emoluments Clauses cases brought against the President. This suit (like the other two actions) poses a number of challenging legal issues for the courts to adjudicate. Judge Daniels, the federal trial court judge who first heard CREW, dismissed the plaintiffs’ action for lack of standing—for that reason, he reached no other legal issues. Plaintiffs appealed. The appeal was fully briefed, and oral argument was held on October 30, 2018. The median time between argument and a decision in a Second Circuit civil case is 7/10ths of a month. Nevertheless, it has been over 9 months, but no decision from the Second Circuit has emerged. Some (count me among them) are puzzled (if not astounded) by the length of time that has already elapsed, and we wonder when the Second Circuit will announce a decision.
I am going to posit a theory why this case has taken as long as it has, and why it might take yet a significant amount of more time. What I put forward here is just a theory.
I think the panel is divided—and not a mere 2-to-1 division between a majority and dissent. Instead, I think there is one majority in regard to standing, in which the panel divides 2-to-1, and finds for the plaintiffs, and another majority in regard to the merits, in which the panel again divides 2-to-1, but here it will find for the defendant. Thus the court will ultimately dismiss, but the reasoning and precedential value of that reasoning will be murky. (Indeed, one or both of the two separate majorities may be divided in regard to their reasoning, although voting the same way on that particular issue.) Such divisions in a panel decision are rare. Given that the Second Circuit has a long-standing and unusual policy of farming out all panel opinions to the other members of the entire en banc court for comments, an opinion divided along the lines set out above might take more time to go through full internal review prior to publication than the run-of-the-mill Second Circuit opinion, even when compared to other opinions with strong dissents. Such a fractured appellate panel opinion (akin to some of the Supreme Court’s church-state rulings) might also be somewhat more lengthy than is customary, and this too will slow down internal review prior to publication.
We have all waited over 9 months—we might have to wait some significant more time still.
Seth Barrett Tillman, When will the United States Court of Appeals for the Second Circuit Decide CREW v. Trump & Why has it Already Taken Over 9 Months?, New Reform Club (Aug. 15, 2019, 11:01 AM), <https://reformclub.blogspot.com/2019/08/when-will-united-states-court-of.html>.